MB8-10993

RAD File No. / No de dossier de la SAR : MB8-10993 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision April 24, 2019 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person(s) who is(are) the subject of the appeal Darius Constantin Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Haiti, fears individuals who allegedly threatened him in Haiti after a speech he gave at an event organized by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) [XXXX XXXX XXXX XXXX XXXX]. Mr. XXXX had been living in the United States since 2002. He made a claim for asylum in the United States, but it was rejected. He married an American citizen, who unsuccessfully tried to regularize his status. He is now separated from his wife. Mr. XXXX was granted Temporary Protected Status (TPS) in the United States and had that status when he travelled to Haiti in XXXX 2016. [2] The facts alleged are as follows: * Mr. XXXX is a XXXX sympathizer. XXXX is a not-for-profit organization in Cayes, Haiti, whose mission is to provide the Cayes community with agricultural and environmental education. He supports them financially by making modest contributions between $300 and $600 per year. He donates food kits, school kits and shirts. * On XXXX XXXX, 2016, he attended a meeting organized by XXXX. The meeting was held outdoors and served to bring together XXXX staff and to distribute school kits to the community. He spoke at the meeting about the importance of making the right choice when electing political representatives. After the meeting, he was threatened by unknown individuals, who told him that if he did not stop supporting the organization financially, they would kill him and torch his house. * He reported these threats to the police on XXXX XXXX, 2016, went into hiding at a friend's house, and left Haiti for the United States on XXXX XXXX, 2016. * Because the US Government announced that it would be ending TPS for Haitians, the appellant came to Canada on August 15, 2017, and filed a refugee protection claim. [3] The Refugee Protection Division (RPD) rejected his refugee protection claim because he was not credible regarding the facts alleged. The panel gave no probative value to two documents submitted as evidence, namely, his XXXX membership card and a police report. The panel noted that Mr. XXXX had made an asylum claim in the US in 2002 and tried to remain in that country permanently, but travelled to Haiti in 2015 and 2016. The panel did not accept his explanations for failing to mention two incidents when he was threatened in his Basis of Claim Form (BOC Form). The RPD noted that he has not supported the organization financially since his arrival in Canada. Because of all these issues, the RPD found that he was not credible. [4] Mr. XXXX argues that the RPD erred in rejecting the documents submitted as evidence and that the omissions are but peripheral details that do not call into question the truthfulness of the testimony. He also alleges that, according to the documentary evidence, the fact that he no longer supports the organization financially does not minimize the risk he faces in Haiti. [5] The appeal is dismissed. The determinative issue is credibility. Mr. XXXX failed to establish, on a balance of probabilities, that he was threatened in Haiti. Mr. XXXX failed to mention in his BOC Form two incidents when he received serious threats. He claims that these omissions are peripheral details. I disagree. Mr. XXXX claims to have definitively left Haiti because of those threats, which are central to his claim. Because of these omissions, I find that he is not credible regarding the facts alleged in his refugee protection claim. ANALYSIS Probative evidence in the materials The RPD erred in rejecting the XXXX membership card [6] The RPD made a microscopic finding regarding the term that Mr. XXXX used to describe his role within the XXXX organization. The RPD found that it was inconsistent that he would have a membership card1 when he described himself as a sympathizer. In its reasons, the RPD found that the inconsistency between the term used to describe his role and what is indicated on the membership card [translation] "casts a doubt as to [his] association to the organization, especially when I noted that the address on the card is a Haitian address."2 Mr. XXXX claims that this is a minor discrepancy, that he was a major contributor to the organization, and that the organization could issue him a symbolic membership card. [7] I agree with Mr. XXXX. During his testimony, Mr. XXXX explained that he was a XXXX sympathizer. He submitted his membership card to the RPD. The RPD asked him why he used the word [translation] "sympathizer" instead of "member" to describe his association with XXXX. He explained that he was not an active member because he lived abroad and that he had not been involved in all of their programs. The RPD then asked him why he did not state that he was an active member, instead of a [translation] "sympathizer" in his BOC Form. He replied that maybe the person who helped him complete his BOC Form had not paid attention to this. The RPD then noted that the address on the card is a Haitian address, but that he lived in the United States. He explained that the coordinator put the organization's address on the card. I accept that explanation because it is possible that the organization included its address in the absence of a permanent address in Haiti. [8] The genuineness of the card was not questioned. I see no credibility issues related to the card. The card is relevant because it establishes that there was a relationship between Mr. XXXX and the XXXX organization, as alleged by Mr. XXXX. Mr. XXXX involvement in XXXX is central to the facts alleged, and whether he is a member or a sympathizer has no bearing on the truthfulness of the facts alleged. I consider the card probative evidence, and I accept that Mr. XXXX was involved in this organization. The RPD did not err in rejecting the police report [9] The RPD gave no probative value to the police report3 because it contained obvious corrections. The dates were changed in three places in the report and replaced with XXXX XXXX and XXXX, 2016. The white-out correction fluid was obvious on the original. Mr. XXXX explained that the police had made the correction. Furthermore, Mr. XXXX aggressors are named in the report, whereas he testified that he did not know his aggressors. He explained that people had told him who his aggressors were. The RPD did not accept those explanations and gave no probative value to the document. [10] On appeal, Mr. XXXX argues that Haitian police procedure does not fall within the panel's area of expertise and it is possible that the incidents unfolded as alleged. Like the RPD, I give no probative value to the police report for the reasons that follow. Several dates in the report were changed. The dates of XXXX XXXX and XXXX, 2016, were corrected. The date on which the events apparently occurred is critical to establishing the facts alleged. At the hearing, Mr. XXXX explained that the police were the ones who made the correction and that the report was subsequently sent to him via Fedex. He speculated that some information might be missing from the report. In my opinion, whether or not the panel has expertise in Haitian police procedures is not at issue here. His testimony establishes that it is impossible to know who in fact made those corrections and why. He did not testify that he saw the police correct the report; he testified that he received the report by mail and that corrections had been made. In this case, I cannot establish the genuineness of the report and I question its credibility. I cannot use it to establish or corroborate the facts alleged. Credibility The RPD did not err in its assessment of Mr. XXXX credibility regarding the facts alleged [11] Mr. XXXX testified that he was no longer in touch with the XXXX coordinator, that his last contact with that person was on August 13, before he left for Canada (he arrived in Canada on August 15, 2017). He explained that he had not told the coordinator about his problems, that is, that he had been threatened by individuals.4 Later in the hearing,5 Mr. XXXX stated that he had spoken to the coordinator in July 2017 and that the coordinator told him that XXXX staff had been threatened and that Mr. XXXX had personally been threatened. The RPD asked him why he did not include these discussions and threats in his BOC Form, and he replied that he had not thought to add that. In the appellant's memorandum, he claims that this omission is a peripheral detail that is not a reasonable basis for concern. [12] I do not accept his explanation for the omission. First, Mr. XXXX contradicted himself. He testified that he had not told the XXXX coordinator about his problems, but later, he recounted a conversation in which they both discussed the threats against Mr. XXXX and other XXXX members. Second, I do not accept that he failed to mention relevant facts that are central to his refugee protection claim because he had not thought about that. Mr. XXXX was represented by an experienced lawyer when he completed his BOC Form, the same lawyer who represented him at the hearing and the same lawyer who represented him on appeal. These facts are too important for establishing that the threats were made, that several people within the organization were threatened, and that the threats continued after he left Haiti. This omission is not a peripheral detail and it significantly undermines his credibility. This omission and the explanations provided do not lead me to believe that Mr. XXXX was threatened by reason of his involvement in XXXX. [13] There were also a few other significant omissions in his BOC Form. He testified that he was threatened on XXXX XXXX, 2016, that people knocked on his door, that he did not open the door and that he heard shots being fired in the area. This event was not mentioned in his BOC Form. He explained before the RPD that he had been under pressure when completing his BOC Form, so he did not include it. As the RPD stated, he would have had ample time to modify his BOC Form. He was also represented by an experienced lawyer from the outset of his refugee protection claim. On appeal, he claims that this detail is also a peripheral detail that is not a reasonable basis for concern. Respectfully, I disagree. The threats he apparently received are key allegations of persecution and must be included in his BOC Form. The omission of these key allegations must be explained in a credible manner. In this case, I do not accept that he failed to correct his BOC Form before the hearing or that he characterized the threat as a peripheral detail. [14] Because of these omissions that are central to the claim, I find that Mr. XXXX is not credible with respect to the alleged events in Haiti. [15] Because I do not believe the threats, the fact that he no longer supports XXXX financially and the periods during which he resided in the United States have no bearing on his risk in Haiti. Therefore, I will not address the RPD's findings or Mr. XXXX submissions concerning those points. CONCLUSION [16] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Ayanna Roberts Ayanna Roberts April 24, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record. Page 143. 2 Appellant's record. Page 8. 3 RPD record. Page 144. 4 Hearing recording. Between minutes 23:40 and 27:00. 5 Hearing recording. Between minutes 1:17:07 and 1:18:40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-10993 RAD.25.02 (September 18, 2018) Disponible en français 6 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (September 18, 2018) Disponible en français